247 P. 577 | Cal. | 1926
This is an appeal from an order admitting to probate a certain document purporting to be the last will of Joseph Devlin, deceased, and granting letters testamentary to Katie O'Reilly. The document which was admitted to probate was entirely written by the deceased and reads, in part, as follows: "San Francisco, August 15th, 1921 — I Joseph Devlin have lived at 229 Ellsworth St. San Francisco, Cal at the above date I am the owner of this will as it was myself who write it up I will appoint my cousin Mrs. James O. Reilly as my respective Trustee. * * * Dear Katie first of all it is my wish that you take charge of my funeral and see that I will be buried respectfully in every way. * * * there is another request I wish to ask of you * * * it is my wish and request that you will pay * * * the sum of $500.00 * * * for Masses * * * You will find in this Will two separate letters * * * You will read those two letters carefully and then you will know how I wish those Masses said. * * * I bequeath to my sister Isabella Devlin in Ireland $500.00 also to my Brother Mark Devlin (and other special bequests making a total of $1500.00) * * * I hope I will be able to leave you a little present for your trouble * * *.
"Dear Katie I have about $2600.00 Dollars in two different banks * * * besides other papers * * * and last Dear *723 Katie the money in Banks and on hand will about pay all expenses then the little place where I lived is worth about 12 or 1400.00 Dollars when you sell it I bequeath $500.00 Dollars out of it as a little token of friendship to you I will state to you later what I would wish you to do with the balance I have some other little interests besides I am tired writing Goodnight" (End of document but without period or other mark.) This document was found after the death of the deceased inclosed in an envelope upon the face of which was written entirely in the hand of the deceased the following: "This Envolope Contains the Late Joseph Devlin's Will Please Deliver This Will to Mrs. James O'Reilly 558-25 Ave Richmond Dist. San Francisco."
The appellant, who is a brother and heir of the deceased, filed written grounds of opposition to the probate of the purported will and prosecutes this appeal from the order admitting it to probate. The basis of the attack upon the order is that the will was not signed by the deceased and that it does not therefore meet the demands of section 1277 of the Civil Code, that "An olographic will is one that is entirely written, dated and signed by the hand of the testator himself." In support of the appeal the appellant relies upon Estate of Manchester,
In the Estate of Hurley, supra, this court, in reversing an order refusing to revoke a previous order admitting a purported holographic will to probate, quoted with approval the language last quoted from the Manchester case. In the Hurley case the document opened with the following words: "San Francisco, June 6th, 1902 — I Margarent E. Hurley, being of sound mind and body do make this my last will and testament." A number of bequests followed and the document ended "to Mrs. Skelly of Alameda five hundred dollars to Lilian and Bertha Morris five hundred each." In holding that the document was not a valid holographic will the court said (page 715): "In the present case the signature appears in the opening statement of the paper, but there is nothing in the document or in the closing paragraph to indicate that the testatrix intended to adopt that signature as the executing signature of the will. Indeed, the contrary may be inferred from the fact that the will terminates without even a punctuation mark, thereby indicating that the testatrix ceased writing before she had completed declaring her intention *725 and that she did not regard the document as a completed will. But the contrary inference need not appear. In the absence of anything on the face of the will to raise the inference that the name in the exordium was intended as a signature in execution, the holographic document cannot be deemed a valid will."
In Estate of Streeton, supra, the document offered for probate had in the upper left-hand corner the name "Harry Streeton," then followed "Los Angeles, May 3, 1918, My last request if I should pass away in this sickness that everything that belongs to me and is under my name will be given to Mrs. Nellie Williams * * *." The will was admitted to probate, and in affirming an order denying a revocation of the will this court reaffirmed the rule in the Manchester and Hurley cases and held "In the document now under consideration, there is no space at the end of the writing in which a signature could have been placed. The name of the testator appears in a blank space, disconnected from the rest of the written matter both as to location and meaning. Had the name appeared in the exordium, the logical inference from the context would probably have been that it was intended merely to identify the person making the will, and additional facts might have been necessary to raise the inference that it was also intended as a signature in execution of the will. (Estate of Hurley,
In the Estate of Bernard, supra, the document offered for probate read, in part, as follows: "The following 4 sheets of paper included, Long Beach, California, Oct. 12, 1918. I, Josephine Bernard of the City and County of Denver, Colo. do hereby declare this to be my last will and testament." The document terminated near the middle of the last page "To her husband Herbert Donahue ruby and diamond stick pin." In affirming an order revoking probate of the alleged will the court analyzed and approved all the cases heretofore referred to, together with the Estate of McMahon,
We have referred to the language of the dicisions relating to the appearance of the name of the decedent in the exordium alone, but Estate of Hurley and Estate of Bernard are both applicable here for the additional reason that the documents offered for probate in each of those cases appeared to have been uncompleted, as is the case with the document here under consideration. Commenting on this circumstance the court in theEstate of Bernard (supra), said: "The abrupt termination of the document near the middle of the last page is a strong indication of decedent's intent to do something more in order to make it a complete will. The last clause being, in all general respects, similar to the preceding dispositive clauses, manifests that the writer did not intend to terminate the document finally and definitely at that particular point, but, rather, indicates that something additional *727 was to be done and necessarily compels the conclusion that decedent had no intention of adopting the name written in the opening clause of the will as the executing signature to her final testamentary act."
In support of the order the respondent relies upon Estate ofMcMahon,
Order reversed.
Shenk, J., Curtis, J., Richards, J., Seawell, J., and Waste, C.J., concurred.